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a brand new day for gay marriage

Earlier this week, the Iowa State Supreme Court ruled by unanimous decision that a statute which recognized marriage as being only between a man and a woman was unconstitutional. In their decision, the Court held that the statute was a violation of the Equal Protection Clause in the Iowa State Constitution.

As one might imagine, there are a significant number of heads exploding since this decision was published. In looking at the language of the actual decision, there are some important aspects that jump out at me. First, for the decision to be unanimous is a huge legal indication as to how important the resulting opinion is as the Court is speaking with one voice. (Most people would say that this is a very obvious observation, but I’m not sure how to make my statement sound rational with a dozen or so exclamation points behind it.) Without a dissent, there is nothing for the opponents of same sex marriage to pick quotes from for future briefs in other states; and judging from the opinion as written, there will not be much for anti gay marriage advocates to choose from. Second, in reading the Background Facts and Proceedings (pg7), take a look at the language used to describe the same sex couples. The writing tone and language descriptors used are ones that humanize the case and bring emotionally evocative language to the opinion. This morphs the opinion from the dry context of legal concepts, an abstract exercise in technicalities, to the main street level where we see these couples as the friends and neighbors, as community contributors, and as regular folks with the same dreams and aspirations as everyone else. Third, in the culmination of dismantling of the legal arguments against same sex marriage, the opinion finishes with a very strong statement:

We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination.

We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa’s
marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our
constitutional duty. If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded. Iowa Code section 595.2 denies gay and lesbian people the equal protection of the law promised by the Iowa Constitution.

(Emphasis mine)

To me, the highlighted line feels like a silver bullet to political objection to same sex marriage. The Iowa Court, in examining the testimony of various experts and amicus briefs submitted on behalf of the County, found their studies, reasoning, and rationale to be legally uncompelling. These are the same sorts of legal arguments that will be presented to other state courts; for the Iowa Supreme Court to set them aside so decisively and completely will lead the way in another case briefs. This opinion is a spear head into the bulk of anti gay marriage legal rhetoric and should be wielded as such. Lastly, as indicated by other observers, this is a case coming from the social conservative heartland. Even some of the justices are appointees by Republican governors (Ternus and Cady), including the justice who wrote the opinion of the court (Cady) . Some may argue that this is a conservative decision as it was based on the narrow interpretation of the Iowa Constitution; others may say that the statute was so poorly considered and written that the justices had no other choice but to uphold the lower court ruling. However, I think it represents a significant conservative step in taking the stand that the government has no interest in regulating those who wish to obtain spousal rights for their relationship. The religious tenets and dogmas cannot hold such sway in “a nation of Christians and Muslims, Jews and Hindus, and nonbelievers.” They have a place in our personal lives, a basis for voting for candidates (perhaps), not a primer for legislation in a land of many beliefs and creeds.

As can be expected, there are social conservatives who are calling for an amendment to the Iowa Constitution. The “activist judges” charge has already been fired off by State Rep. Steve King in calling for a state constitutional amendment. (I would call upon Mr. King to educate himself as to the difference between a law and a constitutional amendment. I would start his education by informing him that a constitutional amendment trumps a law every time; that’s why there are things such as constitutional amendments. Ignorance of these distinctions and others does not bode well for confidence in future legislation writing.) Amending the Iowa Constitution is an onerous process, apparently, as it requires the approval of two consecutive state legislatures and a public on the issue. The Democratically controlled state legislature has indicated that it is not likely to take up the issue. Nate Silver at FiveThirtyEight crunches the numbers with the conclusion that a measure, on a long enough time line (2012 and on), would likely to be defeated by the Iowa voter. The Daily Beast has an excellent collection of different conservative reactions and their possible future actions as gay marriage starts turning mainstream. And, as can be imagined, this will make the Republican Caucuses in 2012 a very interesting event to watch.

As indicated in my bio, I live in New Jersey. New Jersey is one of the first states to support the creation of a civil union. I’ve written about how I feel about the role of government in the institution of marriage. What really turned the gay marriage issue around for me was a same sex couple I grew to be friends with. When the debates earlier in the decade were first stirred up, I was against gay marriage but for civil unions. As time went on and the debate roiled, I came to realize one thing: I could not bring myself to say to them that I was against the idea of them getting married. I couldn’t do it. I couldn’t even form the words outside of their presence. Who was I, I thought, to legally limit their love? These are two gentlemen who care about each other and I could not imagine one not being able to decide or care for the other in a catastrophe. That was my awakening to greater things: that if I could not comfortably tell someone that I was denying them a right, that I really wasn’t against the concept in the first place.